Religious schools can legally discriminate against LGBT students
Scott McSwain was told he was going to hell.
Sitting in a dimly lit room on the campus of Union University in western Tennessee, out as gay to fewer than six people and now, apparently, to the private Christian school’s administration, McSwain said he was given a choice — conversion therapy or expulsion.
“Where was I going to go?” he told McClatchy News. “I couldn’t be myself in my family. I didn’t have a choice. I couldn’t leave.”
Union’s ultimatum was entirely legal. The university is one of dozens of schools that receive federal funding but are allowed to claim a religious exemption to Title IX regulations, which bar K-12 schools and institutions of higher education that receive federal funds from discriminating on the basis of sex, including sexual orientation.
McSwain is one of 33 current and former students across the United States suing the Department of Education for allegedly violating the Constitution by allowing schools to claim such a religious exemption to federal anti-discrimination laws.
The lawsuit was filed Monday in U.S. District Court in Oregon on behalf of a proposed class of more than 100,000 LGBTQ students at religious universities across the country.
“The plaintiffs seek safety and justice for themselves and for the countless sexual and gender minority students whose oppression, fueled by government funding, and unrestrained by government intervention, persists with injurious consequences to mind, body and soul,” their attorney Paul Southwick said in the complaint.
In a statement to McClatchy News, the U.S. Department of Education said the Biden-Harris administration is “fully committed to equal educational access for all students.”
The statement also pointed to President Joe Biden’s March 8 executive order requiring the education department to examine the rules surrounding Title IX.
“It is the policy of my Administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity,” Biden said in the order.
‘GODLY PEOPLE’
McSwain grew up in western Tennessee, the son of a Southern Baptist minister who also attended Union University, a small school midway between Memphis and Nashville with roughly 3,100 undergraduate and graduate students.
Though originally set to attend Murray State University in Kentucky, McSwain said he ended up at Union after his father found out his would-be roommate was gay.
“My family decided it was best to attend a school where surrounding myself with godly people would have a more positive effect on me,” he wrote in court documents.
The university’s community values include a reference to “sexually impure relationships” and the acknowledgment that God’s definition of marriage is between a man and a woman, according to the student life handbook.
“The promotion, advocacy, defense or ongoing practice of a homosexual lifestyle (including same-sex dating behaviors) is also contrary to our community values,” the value statements read. “Homosexual behaviors, even in the context of a marriage, remain outside Union’s community values.”
In a statement to McClatchy News, Union University President Samuel W. “Dub” Oliver said they “believe that all persons have inherent dignity and thus should be treated with kindness and respect.”
He added the university has exercised its “legally-guaranteed religious freedom in a manner that upholds and reflects this bedrock principle.”
“Faith-based colleges and universities are an indispensable part of America’s diverse higher education landscape,” Oliver continued. “This dubious lawsuit is an ill-considered effort to erase religious schools by denying financially disadvantaged students the ability to attend the college of their choice.”
Oliver also said “every presidential administration — both Democrat and Republican” has respected the religious exemption rules “for over four decades.”
“We intend to vigorously protect our interests and encourage the Biden administration to fulfill its duty to defend a law that reflects the best traditions of American liberty,” he said.
McSwain isn’t sure how administrators at the school found out he was gay — it could have been an ex-girlfriend, or the guy he was seeing at the time. He said a handful of people on campus knew.
But that’s how he came to be in that dimly lit room in 2009 in front of the dean of students and several members of her staff.
They all cried, he said, as they told him they were worried about his soul. They reportedly said it came from a place of love. In court documents, McSwain said they threatened him with expulsion if he didn’t attend conversion therapy at Exodus International, a controversial ”ex-gay Christian umbrella organization” that shut its doors in 2013.
He chose conversion therapy, a practice discredited by the medical and mental health communities that seeks to change a person’s sexual orientation, gender identity or expression, according to the Human Rights Campaign.
McSwain said he was later groped by his therapist.
Union also made him download software on his computer to track his internet history, he said. Once a week, McSwain reportedly sat down with an “accountability partner” who went through it with him.
“My heart would just race. It’s racing just now imagining that I’m back in that room,” he told McClatchy News. “I didn’t know then what a panic attack was, how it manifested. But my heart wouldn’t stop racing for days.”
McSwain said he eventually went to the hospital and had to wear a heart monitor for several days.
“In the end, it was the fact that I was experiencing an insane amount of trauma and discrimination in the name of their interpretation of what God saw as right or just,” he said.
TITLE IX AND THE CONSTITUTION
The Title IX religious exemption has long been used to protect colleges and universities from complying with federal discrimination laws that go against their beliefs, though it can be hard to keep track of which institutions have sought one, Teen Vogue reported in 2018.
According to the Office for Civil Rights, educational institutions don’t have to file a written statement to claim such a religious exemption.
“The Department (of Education) has never denied a religious exemption when a religious educational institution asserts a religious objection, no matter how vague or broad that objection might be, and regardless of the severity of harm inflicted on the student whose complaint, or mere existence, gave rise to the exemption request,” Southwick said in the lawsuit.
He said such an exemption violates Equal Protection laws guaranteed by the Fifth and Fourteenth amendments as well as the Establishment Clause, which provides for the separation of church and state in the U.S.
The lawsuit seeks to declare the religious exemption unconstitutional, bar any future requests for a religious exemption and rescind those that already exist, mandate all universities treat Title IX complaints the same and require any institution that receives federal funding to “respect the sexual orientation, gender identity and gender expression oft heir students.”
A PATTERN OF DISCRIMINATION
McSwain told McClatchy News people are quick to blame him for attending Union. They say he should have known better than to expect acceptance at a Christian-affiliated university.
“There’s so many things that for an 18-year-old who doesn’t come from wealth or extreme opportunity, there’s so many things that I couldn’t control,” he said. “Doing something other than going to Union — it didn’t seem like an actual option.”
But his experience wasn’t an isolated incident.
Nearly a decade after McSwain graduated in 2010, Alex Duron, a prospective doctoral candidate at Union, lost his place before classes even started.
Duron, who is gay, said he accepted a spot in the Doctor of Nursing Practice program in 2019. But a few weeks before the semester started, he said he received an email rescinding his acceptance. The letter pointed to his “unwillingness to abide by the commitment you made” by signing the community values statement.
“I felt like I was going to pass out. When I got home, I fell apart and broke down,” Duron said in court documents. “I went into our closet, closed the door, turned the lights off and cried. My future was ripped away from me.”
Southwick told McClatchy News that can be par for the course in the South.
“For plaintiffs from colleges in the Southeast, being LGBTQ+ on their Christian campuses can be even more frightening and risky for them because their campuses are located in states that do not have any legal protections for LGBTQ+ Americans,” he said. “For example, Tennessee doesn’t have state legal protections.”
McSwain said he approached officials at Union University to report being sexually assaulted by his therapist.
But it wasn’t for help — it was for leverage.
McSwain said he threatened to take his story to the local news if they forced him to continue attending therapy. A dean didn’t push it. Instead, he said, she let him stop going and then stopped speaking to him for the remainder of his time at Union.
“The next time she looked at me, she was putting the Mr. Union sash on me,” he told McClatchy News. “Because ironically, I won ‘Most Christ-like’ my senior year.”
McSwain said he hopes coming forward now will help prevent more students like him from going to Union. He also hopes to change it so that “schools can’t accept money from the government and continue to practice these barbaric treatments of people who are absolutely normal.”
“My story could do something much bigger than be my own personal nightmare,” he said.